Croker v Health Care Complaints Commission

[2022] NSWCATAD 294

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Croker v Health Care Complaints Commission [2022] NSWCATAD 294

Hearing dates:

22 August 2022

Date of orders:

1 September 2022

Decision date:

01 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

The Tribunal affirms the respondent’s decision of 25 November 2021.

Catchwords:

ADMINISTRATIVE LAW-freedom of information- government information public access-complaint handling-excluded information-invalid application-Government Information (Public Access) Act 2009 (NSW)

Legislation Cited:

Administrative Decisions Review Act (NSW) 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:

Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30

Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Patrick Croker (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Applicant (Self-represented)
Feneil Shah (Respondent)

File Number(s):

2022/00153779

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. Mr Croker (the applicant) seeks review of a decision made by the Health Care Complaints Commission (the respondent) on 25 November 2021 refusing him access to information. The information was about the complaints Mr Croker had made concerning the treatment he received by a medical centre and certain medical doctors. Those complaints were considered and dealt with by the Health Care Complaints Commission (HCCC). Mr Croker requested access to the information considered by the HCCC in the complaint handling process. The access was denied on the basis that it was excluded information under the Government Information (Public Access) Act 2009 (GIPA Act).

2. On 27 May 2022 the applicant filed an Administrative Review Application with this Tribunal. On 29 June 2022, the respondent sought an order dismissing the proceedings, as “misconceived or lacking in substance”, pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

3. It appears that due to clerical error the applicant’s reply to the dismissal application was not before the Tribunal until the evening before the scheduled hearing of the matter. It was, in those circumstances, considered appropriate to deal with the application for dismissal at the outset of the scheduled hearing.

4. The matter came on for hearing on 22 August 2022. The Tribunal heard from both parties on the dismissal application and decided to proceed with the substantive review as both parties were present, the applicant wished to proceed, and the issue was essentially the same. That is, was the information sought by the applicant excluded information which could not be released to him.

The Application for Review

5. The administrative review application form submitted by the applicant to this Tribunal, specified both the HCCC and the Information and Privacy Commission (IPC) as the respondents. As grounds for the application it stated, in part, “I am making application to you to overturn the decision by HCCC to withhold registered GIPA material on their internal investigation guise [sic] as it is criminal material and the HCCC has no framework to refer criminal material to police…”. Attached to the application for review was a decision of the IPC, dated 2 May 2022, which stated, in part, “I am satisfied that the Agency's decision under review is justified in relation to the application not being a valid access application”.

Respondent’s submissions

6. The respondent submits “…the information requested by Mr Croker squarely and only arises from complaints he has made to the Commission. The information requested relates to the Commission’s functions of complaint handling and nowhere else. Mr Croker’s GIPA application must be conclusively presumed to be for excluded information and hence invalid”.

7. The respondent submits the information sought is excluded information pursuant to Clause 2 of Schedule 2 of the GIPA act.

Applicant’s submissions

8. The applicant made oral submissions at the hearing on 22 August 2022 and put into evidence a one-page document which is a Product Information Sheet for certain medications. He stated that he had significant on-going health issues but that he was able to, and wanted to, proceed with the hearing.

9. He said he wanted the Tribunal to refer the matter to “the Federal Court in Canberra” or to the NSW Police, or District or Supreme Courts. He said his complaints against the doctors and medical centre were about serious criminal matters. He said the NSW Police had failed to treat these matters properly. He said the HCCC was deliberately concealing evidence of criminality by the doctors and GIPA access was the only way that he could get these criminal matters before the courts.

10. The applicant then objected to the presence of the respondent’s representative on the basis of his employment status with the HCCC. The applicant appeared to become rather distracted and continued to interrupt both myself and the respondent when we attempted to address issues he was raising. I referred to his ill-health and asked if he felt able to proceed. He said he was not well but wanted to proceed and after a momentary pause he continued.

Respondent’s submissions in reply

11. The respondent submitted that the entirety of the information sought by Mr Croker was concerned with the complaint handling process, there were not just one or two exceptions, it was all covered by Schedule 2 and was therefore excluded information that could not be released, and his application was invalid.

Legislation

12. Section 43 of the GIPA Act provides as follows:

43 Access application cannot be made for excluded information

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note: Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

13. Schedule 2 of the GIPA Act provides as follows:

Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is “excluded information” of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

…

2 Complaints handling and investigative information

...

The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint).

14. The Health Care Complaints Act 1993 provides as follows:

80 Functions of Commission

(1) The Commission has the following functions-

(a) To receive and deal under this Act with the following complaints-

•   complaints relating to the professional conduct of health practitioners

•   complaints relating to a relevant health organisation, including an alleged breach by relevant health organisation of a code of conduct...

•   complaints concerning a health service that affects, or is likely to affect the clinical management or care of individual clients

Decision and findings

15. The decision for the Tribunal in this application is whether or not the information which the applicant seeks falls under the exclusion provision of Schedule 2 to the GIPA Act. That is, does the information relate to the complaint handling function of the respondent HCCC.

16. The applicant’s original access application stated:

I consider it unfair that the doctors get all my information to defend themselves and I the victim get none of theirs

I want all correspondence from these doctors in my 3 complaints

All telephone recorded material used to determine cases

All electronic correspondence supplied to Commission in reference to its judgments and all medical tests and information used in all judgments case no 21/353 21/354 and any other existing 21/355

How do they block their information section 54 and I have no rights under 54

To block mine to them. Your stacked system to defend them only and not the victim at all

17. The applicant has provided a volume of written material in support of his claims, but I have not been able to identify anything in it which amounts to relevant evidence for the matter in issue. The material is repetitive and discursive without addressing the principal issue, namely the effect of section 43 and Schedule 2 of GIPA.

18. Schedule 2 uses the words “relates to a function”. Complaint handling is a specified function of the HCCC. It is clear from the original access application quoted above at paragraph 16, that the applicant seeks information about the handling of his complaints. In Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185, the Tribunal considered the meaning of “relates to” and held it to have a “broad meaning”. Similarly, in Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30 the Tribunal noted the wide meaning of the words “relates to”.

19. I have carefully considered the applicant’s oral claims and written material. It is not the Tribunal’s function to refer applications for review to courts or to the police. It is open to the applicant to raise his concerns with those bodies himself.

20. Applying a wide or broad meaning to the words “relates to”, I am satisfied the information sought by the applicant is excluded information of the agency and there is an overriding public interest against its disclosure. The HCCC has not consented to disclosure.

21. I find the access application is invalid and I affirm the decision of the respondent to refuse to disclose the information.

Order

The Tribunal affirms the respondent’s decision of 25 November 2021.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 September 2022